Duty to Maintain
At common law, a father was under a duty to maintain his legitimate infant children with food, clothes, accommodation and other necessaries. The duty was not enforceable. A wife’s agency of necessity extended to the purchase of necessaries on behalf of the children of the marriage.
The Family Law (Maintenance of Spouses and Children) Act, 1976, provides for payment of maintenance for the support of dependent children. It is separate to the possibility of orders for maintenance under judicial separation and divorce legislation. Maintenance may be sought even if the parties reside together, are already separated or divorced, there is no grounds for judicial separation or divorce, or the parties do not wish to seek either status.
Where it appears to the court that the spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, it may make a periodical maintenance payment order for their support. The resources of the child are to be taken into account in considering whether there has been a failure to make proper provisions.
There are separate limits of jurisdiction in respect of the maintenance payment to children and spouses. The Circuit Court and High Court have unrestricted jurisdiction. There is cap on District Court jurisdiction. The maximum that the District Court can order for the maintenance of a child is €150 per week from either parent.
The maximum that the District Court can order for the maintenance of a spouse is €500 per week. The Status of Children Act provides for lump-sum payments only in relation to birth or funeral expenses of a child. They are not to exceed €2,000 in either case.
An application for maintenance is usually made by a parent spouse against another parent spouse. However, where a spouse is dead, has deserted, has been deserted by the other spouse or is living separately and apart from the other spouse and there were dependent children of the family who are not being maintained by either spouse, a court may make a periodical payments order of maintenance for the support of each dependent child, to the person who makes application.
This provision may be used by close relatives such as grandparents. It may also be used by the HSE and the Child and Family Agency. It may be open to the child, him or herself, to make the application. The application may not be brought against parents who still live together as spouses by any third party. This includes their child.
Desertion or misconduct by one spouse does not affect the liability to contribute towards the maintenance of dependent children of the family in the other’s custody. The effect may be that even if a spouse is precluded from or denied maintenance, that maintenance is paid to the child for the benefit of the dependent children.
Lump Sum or Periodic
The Family Law Act 1995 provides that a lump sum order may be made for the benefit of children as well as for a spouse. This may be made for the purpose of meeting specific expenses, for reason either accrued, arising or to arise in the future. The District Court’s jurisdiction in relation to the lump sum is limited. The order may be made specifically for the child’s benefit.
A periodical maintenance order should specify the part of the payment for the support of a child. It may specify the period during the lifetime of the applicant for whom payment is to be made. An order may be secured or unsecured. An order for child support ceases on the dependent child ceasing to be dependent. The court must be satisfied that the child, by reason of attaining an age or other circumstances, has, in fact ceased to be dependent.
A dependent child of the family, is a child under 18 years’ old of both spouses or adopted by both spouses, in relation to whom both are in loco parentis, a child of either spouse or adopted by either or in relation to whom either is in loco parentis, where the other spouse being aware that he is not a parent of the child, has treated the child as the member of the family.
A person over 18 years old remains a dependent if he is or would be receiving full-time education or instruction at any university, college, or school of educational establishment and is under the age of 23 or is suffering from mental and physical disability to such extent that it is not reasonably possible for him to maintain himself.
An application for a maintenance order may be made under the Guardianship of Infants Act, for a child indefinitely in respect of a child who is suffering from a mental or physical disability to such extent that it is not reasonably possible for him to maintain himself fully. It may be secured or unsecured. The 1964 Act also provides for jurisdiction in relation to maintenance beyond the age of 21, irrespective of whether the dependent children concerned are in full-time education.
Variation and Discharge
Where circumstances have changed, an application may be made to vary or discharge a maintenance order for the benefit of the dependent children. It may result due to circumstances deteriorating or the needs or requirements of the maintenance creditor/payee changing. In times of high inflation, applications may be necessary to increase the maintenance payment in order to maintain the value of the payment.
An order for maintenance and the support of a child is discharged upon the child reaching the above age limits. If the child otherwise ceases to be a dependent child of the family, then an application may be made to discharge the order.